Copyright as an Access Right, Securing Cultural Participation Through the Protection of Creators’ Interests
In: R. Giblin, K. Weatherall (eds.) What if We Could Reimagine Copyright?, Canberra, ANU Press, 2017, pp. 73-109
36 Pages Posted: 9 Sep 2015 Last revised: 24 Feb 2017
Date Written: August 13, 2015
Copyright, originally conceived as a tool to protect the author and to provide incentives to create for the benefit of society, is nowadays more and more perceived as a mechanism to the advantage of “large, impersonal and unlovable corporations”. The inherent social dimension of copyright law has progressively been lost of sight by policy makers to the benefit of strictly individualistic, even egotistic conceptions. In the recent discourse on the strengthening of legal means of protection, copyright is more frequently presented as an investment-protection mechanism than a vehicle of cultural and social progress. In this context, the society’s enrichment and future creativity are often portrayed in the rhetoric of the major economic players only as “a fortunate by-product of private entitlement”. This has provoked some important counter-reactions: as copyright is perceived mainly as a right to forbid, to sanction and punish, infringing copyright has sometimes evolved among younger generations to an act of protest, leading to a serious crisis of legitimacy. Even among creators, copyright is increasingly perceived as a hurdle in the creative process, as the success of so-called “open content” models clearly demonstrates.
These developments urgently attest the need to rethink copyright in order to adapt its rules to its initially dual character 1) of a right to secure and organize cultural participation and access to creative works (access aspect); and 2) of a guarantee that the creator participates fairly in the fruit of the commercial exploitation of his (or her) works (protection aspect). Avoiding the privatisation of information by copyright law and assuring that cultural goods are still available for future innovations might mean (re)conceiving copyright as a right to access rather than a right to forbid, thereby emphasizing the inclusive rather than the exclusive nature of copyright protection.
Keywords: Copyright rationales, access to culture, social function of law, the common interest, protection of creators, rights and duties, limitations, three-step test to access protection
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